The city of New Bedford says that New Life South Coast Church can have 90 people at a time in its 40,000 square foot facility because of the coronavirus emergency — and the church is not happy about it.
First Liberty and Massachusetts Family Institute sent a demand letter to the city’s mayor, Jonathan Mitchell, last Friday saying the city is engaging in discriminatory behavior towards churches — and that the church should be able to operate at the same capacity as other businesses in the city, including restaurants.
There are no percentage-based capacity limits at restaurants in Massachusetts, but the state requires social distancing among groups. However, the city is limiting the church to 10 people per 1,000 square feet per room in the church. Meanwhile, this church often had 500 people at each of its two weekly services pre-pandemic. Its total capacity is 1,000 people.
“We also note that the City’s extremely restrictive capacity limitation singles out the Church for disfavored treatment vis-à-vis certain nonreligious buildings, organizations, and businesses — such as restaurants — that operate under mere social-distancing guidelines without a capacity restriction,” the church’s demand letter reads. “Indeed, even putting aside the City’s mistaken interpretation of the [state] Standards, we are concerned that even the applicable 50% capacity limitation subjects the Church to such unequal treatment. But the City’s mistaken approach has made the disparity all the more egregious.”
New Bedford Mayor Jonathan Mitchell could not be reached for comment on Wednesday. Nor could a church official.
The church’s letter refers the state’s occupancy limits for indoor services at places of worship, which are:
For indoor services, places of worship must monitor member entries and exits and limit occupancy at all times to the greater of the following:
50% of the building’s maximum permitted occupancy as documented in its occupancy permit on record with the municipal building department or other municipal record holder
Buildings for which no permitted occupancy limitation is on record may allow 10 persons per 1,000 square feet of accessible space
In any case, no enclosed space (e.g. a single room, basement) within the building may exceed occupancy of 10 persons per 1,000 square feet
All occupant counts and calculations shall include customers but may exclude staff, and other workers
If feasible, places of worship are encouraged to arrange online sign-up for services in advance in order to monitor and limit the number of attendees
The letter argues that because the state says “the greater of” when talking about the capacity limit for churches, that the 50 percent capacity limitation is what applies here — not 10 people per 1,000 square feet.
By not letting New Life South Coast allow up to 500 people in the church, the church’s lawyers argue, the city is violating the law. The letter refers to Massachusetts Governor Charlie Baker’s executive order of May 18, 2020 in response to the coronavirus pandemic, highlighting this portion:
No municipal or other local authority should adopt or enforce any workplace health or safety rule to address COVID-19 that is in addition to, stricter than, or otherwise in conflict with any COVID-19 workplace safety rule adopted in this Order or under the implementing directives, regulations, and guidance issued by DLS or DPH under the authority granted by this Order.
“DLS” refers to the state’s Division of Labor Standards. “DPH” refers to the state’s Department of Public Health.
The letter says that New Life South Coast is operating in compliance with the state’s standards and safety rules and that church leaders are making sure that all of their services are safe.
Andrew Beckwith, president of the Massachusetts Family Institute, said the city’s restrictions are an abuse of power.
“Phase IV was supposed to be the ‘new normal’,” Beckwith said in a written statement. “But there’s nothing normal about attendance restrictions on churches for a second Easter Sunday in a row. Emergency powers that continue for more than a full year cease being justified by an ‘emergency’ at some point and transition into obvious violations of bedrock Constitutional rights.”
A lawyer representing the church, David Hacker, director of litigation for First Liberty Institute, said city officials are singling out churches for poor treatment.
“A year into the pandemic and after several Supreme Court decisions, New Bedford officials continue to act like only secular businesses are essential,” Hacker said in the written statement, which quotes U.S. Supreme Court justice Neil Gorsuch’s opinion in the February 2021 religious-freedom-in-coronavirus case South Bay United Pentecostal Church v. Newsom.
“It’s past time for local officials to stop treating houses of worship unequally,” Hacker said. “As Justice Gorsuch noted, ‘Even in times of crisis — perhaps especially in times of crisis — we have a duty to hold governments to the Constitution.’ ”
